Oregon Appellate Court - March 5, 2014
by: Abassos, Alarson, Cmaloney and Alex Collins • March 5, 2014 • no comments
Discovery: No Duty on State to Acquire DOC Records
A prosecutor does not have a duty to acquire inmate phone records from the DOC and give them to the defense. DOC records are not within the constructive possession of the District Attorney because there is no DOC duty to investigate criminal activity or assist in law enforcement. Thus, absent any circumstances suggesting that the prosecutor is in “control” of the records, or that the DOC is acting as an “arm of the prosecution” in a particular case – the prosecutor has no duty to acquire DOC records. Here, defendant requested through discovery in a Sodomy case, recordings of telephone conversations defendant had, while incarcerated at the DOC on unrelated charges, with the alleged victim and other family members in which the alleged victim denied that the defendant had ever been sexually inappropriate. The DA had no duty to acquire the recorded statements. State v. Daniels, 261 Or App ___ (2014).
Civil Compromise – Only the Directly Injured Victim Needs to Assent, Not the Insurance Company
The civil compromise statutes do not require that an insurer acknowledge satisfaction of its injuries before a trial court may allow a civil compromise. The legislative history of the civil compromise, restitution, and anti-merger statutes indicate that insurers are not included in the scope of civil compromise. While the restitution statutes’ case law and history were originally similar to the civil compromise statutory language, the legislature expressly expanded the definition of “aggrieved party” to include insurance companies within the scope of restitution and has not done so with “person injured” for civil compromise. The anti-merger statutes define “victim” as the precise person who suffers harm from the crime. The court concludes that the legislatively intended meaning of “person injured” in the civil compromise statute is limited to the person directly injured by the criminal acts. Thus, only the directly injured victim needs to acknowledge satisfaction of injuries in order for the trial court to dismiss charges by civil compromise. State v. Ferguson, 261 Or App ___ (2014).
Preservation - Amended Indictment Morning of Trial - Correct Arg is Grand Jury, Not Notice
Where the state, in a Sodomy case on the morning of trial, attempted to amend the indictment to significantly expand the date range, the correct defense objection was that:
- "the amendment circumvents the jurisdictional function served by the indictment, i.e., the requirement that the indictment is the product of a grand jury and ensures that the defendant is tried only for an offense that is based on facts found by the grand jury indicting him." Here, defense counsel argued that he was given insufficient notice - that his preparation and investigation focused on the narrower date range, even if the discovery mentioned the broader date range. The notice argument is insufficient to preserve the jurisdictional function argument. State v. Daniels, 261 Or App ___ (2014).
Defendant’s Pre-Mills Venue Challenge Via MJOA Does Not Waive an Appropriate Challenge to Venue on Remand
In State v. Mills, the court held that under Article I, section 11, of the Oregon Constitution proper venue is not a material allegation that the state is required to prove beyond a reasonable doubt at trial. Rather, a criminal defendant has a waivable right to object--before trial--to improper venue. To avoid waiving the right a defendant must put venue at issue in a pretrial motion. In the instant cases, the defense counsel challenged venue through MJOA before State v. Mills, 354 Or 350 (2013), was decided. The court reverses and remands both cases to give the defendants an opportunity to object to venue by motion, as prescribed by Mills. State v. Weilert, 261 Or App ___ (2014);State v. Burton, 261 Or App ___ (2014).
An Error in Imposing Restitution Requires a Remand for Resentencing
When the appellate court determines there to be an error in imposing restitution, the case will be remanded for resentencing. At the resentencing, the court may consider imposing alternative fines or sanctions. Here, the trial court erred by imposing restitution more than 90 days after judgment and without giving defendant an opportunity to be heard. Thus, the case gets remanded for the court to start the sentencing over (presumably without the option of restitution.) State v. Lopez, 261 Or App ___ (2014).
Lack of a Custody Order is Not Sufficient for Continued Jurisdiction Absent Proof of Continued Danger
To continue the juvenile court’s jurisdiction over a child, there must be proof that the conditions on which jurisdiction is based continue to exist to the same degree that they did when jurisdiction was initially asserted. Absent such proof, lack of a custody order alone is not grounds on which to continue jurisdiction. Here, father does not have custody of child A, and had another child with a new wife. DHS allowed the newborn to stay with the newlyweds. The father then brought an action to get custody over child A. The trial court denied his attempt based on the fact that the wife had her two children from a previous relationship taken due to: the condition of her home, her drug use, and her domestic violence issues. The court noted that she had yet to seek custody over the two children. The court purposely did not address the fact that DHS recently gave them custody over their newborn. The court of appeals grants custody, holding that the home condition is no longer an issue, and DHS did not present evidence that the wife’s drug use as well as domestic violence has continued. The court recognizes a previous holding that lack of a custody order would only be a reason for continued jurisdiction if the father’s lack of a custody order would present some danger to the child – which is not the case here. Department of Human Services v. D.A.S. JR., 261 Or App ___ (2014).
